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(B) has not initiated proceedings to challenge the request of the governmental
entity.
(5) A governmental entity may seek to require the creation of a backup copy
under subsection (a)(1) of this section if in its sole discretion such entity
determines that there is reason to believe that notification under section 2703 of
this title [18 U.S.C. § 2703] of the existence of the subpoena or court order may
result in destruction of or tampering with evidence. This determination is not
subject to challenge by the subscriber or customer or service provider.
(b) Customer challenges.
(1) Within fourteen days after notice by the governmental entity to the
subscriber or customer under subsection (a)(2) of this section, such subscriber or
customer may file a motion to quash such subpoena or vacate such court order,
with copies served upon the governmental entity and with written notice of such
challenge to the service provider. A motion to vacate a court order shall be filed in
the court which issued such order. A motion to quash a subpoena shall be filed in
the appropriate United States district court or State court. Such motion or
application shall contain an affidavit or sworn statement—
(A) stating that the applicant is a customer or subscriber to the service from
which the contents of electronic communications maintained for him have been
sought; and
(B) stating the applicant's reasons for believing that the records sought are not
relevant to a legitimate law enforcement inquiry or that there has not been
substantial compliance with the provisions of this chapter [18 U.S.C. §§ 2701 et
seq.] in some other respect.
(2) Service shall be made under this section upon a governmental entity by
delivering or mailing by registered or certified mail a copy of the papers to the
person, office, or department specified in the notice which the customer has
received pursuant to this chapter [18 U.S.C. §§ 2701 et seq.]. For the purposes of
this section, the term "delivery" has the meaning given that term in the Federal
Rules of Civil Procedure.
(3) If the court finds that the customer has complied with paragraphs (1) and
(2) of this subsection, the court shall order the governmental entity to file a sworn
response, which may be filed in camera if the governmental entity includes in its
response the reasons which make in camera review appropriate. If the court is
unable to determine the motion or application on the basis of the parties' initial
allegations and response, the court may conduct such additional proceedings as it
deems appropriate. All such proceedings shall be completed and the motion or
application decided as soon as practicable after the filing of the governmental
entity's response.
(4) If the court finds that the applicant is not the subscriber or customer for
whom the communications sought by the governmental entity are maintained, or
that there is a reason to believe that the law enforcement inquiry is legitimate and
that the communications sought are relevant to that inquiry, it shall deny the
motion or application and order such process enforced. If the court finds that the
applicant is the subscriber or customer for whom the communications sought by